repairing and maintaining common property the inconvenient truth

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Repairing & Maintaining Common Property: The Inconvenient Truth

A presentation for the Body Corporate Industry Expos 2012


A Body Corporate’s Duty for Common Property is Three Dimensional

Duty of Care

Duty to Maintain &

Repair

Duty to Ensure

Health & Safety

The common law of occupiers liability

SM 159 / AM 157WHS Act 2011


Defining Common Property

• Tiles on walls and floor?• Claw foot bath?• Shower screen?• External wall?• Internal wall?• Cornices?• Light fitting?• Paintings?• Pipes?


The Statutory Duty to Maintain and Repair

The 5 principles from Seiwa v SP 35042 [2006] NSWSC followed in Qld in Magog (Prada)1. Must means ‘must’2. Proactivity required3. Fix defects first, sue later4. Applies to all the common

property5. Lot owners can sue for

breach


Common Law Duties Go Beyond Lot Owners

Visitors

Trespassers

Tenants Purchasers


Reasonable Care Includes Compliance With Australian Standards When Built

• Railings 50 mm below Australian Standard when built

• Drunk “buck” fell when squeezing past wrestling mates and became a paraplegic

• $3.21m damages against owners corporation reduced by 30% contributory negligence; Toomey v Scolaro Concrete Constructions and Ors (2) [2001] BSC 279


Reasonable Care at Common Law Does Not Include Retro Fitting for Changing Australian Standards

• To take reasonable care to protect people from risks that can be foreseen and avoided; Ridis v SP 10308 (2005) NSWCA 246

• A majority decided some form of proactive management was required of owners corporations because of s.62 SSMA 1996 but Australian Standards about glass are not retrospective


Reasonable Care Includes Adopting New Non-structural Australian Standards

• A carpet off-cut tripped a man who fell down the stairs

• A $25 non-slip mat recommended by a post-construction Australian Standard would have avoided the accident

• Home unit blocks with higher density require greater precautions than an ordinary home; Morgan v SP 13937 (2006) NSWSC 1019


Strata Manager v Owners Corporation• Wong v Body Corporate 1 Plan No

433814P (2009) VCC 0100

• Slip and trip at the dentist. Strata manager responsible for routine and minor repairs and maintenance and general advice

• No delegation of responsibilities

• Manager arranged safety report that did not recommend non-slip treatment for tiles

• Body corporate 100% responsible vis-à-vis strata manager


This Year the Stakes are Higher Due to a New WHS Regime

• Recklessness / risk– OC / BC $3 million– Committee $600,000 / 5 years jail– SM $300,000 / 5 years jail

• Breach / risk– OC / BC $1.5 million– Committee $300,000– SM $150,000

• Breach– OC / BC $500,000– Committee $100,000– SM $50,000


But the Defence for Personal Liability is Clearer

1. Keep up to date2. Understand operations3. Eliminate or minimise risks4. Process information5. Supply resources and

processes 6. Verify provision and use of

resources and processes(Due diligence defence S.27(5) WHS 2011)


New WHS Laws at a Glance

Effective 1 January 2012 in QLD, NSW, ACT

No ‘grace period’ for compliance (OHS plans good for 12 months)

OC / BC = Person carrying on a business or undertaking

Residential strata exemption confusing & virtually useless

Reverse onus removed - prosecution must prove breach


The New WHS Approach

‘Work’ is the key concept not ‘Workplace’

PCBU concurrent

duties of care, consultation & co-operation

Positive duty for officers to

exercise due diligence

Significantly increased

personal liability


PCBU

Business

Non-profit

Undertaking

Profit

Person Carrying on a Business or Undertaking

Volunteer association exemption – strata fails

community purpose test

Residential purposes only exemption – applies only

to occupants doing domestic work


PCBU’s in the Strata World

Owners Corp / Body

Corp

Strata Manager

Building Manager

Lot Occupier


Persons Who Are Not A PCBU

A strata body that is responsible for any common

areas used only for residential purposes is not a PCBU so long as no worker is engaged as an employee (s.7 WHS Act 2011)


Only for Residential Purposes Means No• OC / BC employees• Common property with

commercial lots• On-site letting agent• Lots used as home businesses• Nannies employed in lots• Lots for short term

accommodation• Communication towers /

satellite dish / advertising signs• Paid workers temporarily on site


The Basic WHS Duty of Care

“To ensure, so far as is reasonably practicable, the health and safety of workers and other persons”

Hargreaves v Telstra Corp Ltd [2011] AATA 417 (17 June 2011) is the high water mark


Reasonably Practicable Depends on ……

Likelihood of risk

Degree of harm

Actual or imputed knowledge

Options to eliminate & minimise risk

Cost v risk


Primary Duties of a PCBU

PCBU Primary Duty of

Care

Safe Work Environment

Safe Plant & Structures

Safe Work Systems

Safe Use Handling &

Storage

Info, Training, Instruction, Supervision

Adequate Welfare Facilities

Conditions & Health

Monitoring


Additional Duties of PCBU in Control of a Workplace

“The person with management or control of a workplace must ensure, so far is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace, are without risks to the health and safety of any person”

S.20 WHS Act 2011


Special Rules for Asbestos

For buildings built prior to 1 January 2004

• Must identify all

asbestos• Must have a register in

any event• Register must be kept

on site• Asbestos management

plan required if asbestos is identified

• For major repair or demolition special rules and procedures must be devised


Duties of an Officer of a PCBU

“An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties and obligations”

S.27 WHS Act 2011


Officers in the Context of Strata

• Committee members• Original owner• Compulsory

administrators• Strata managers• Building managers


Think 3-D ‘Demonstrating Due Diligence’

Subscribe for WHS web updates

Commission regular safety

studies

Implement study recommended

work

Collect & use incident

information

Supply resources & processes

Verify provision & use of resources

& processes


We Can Help You Develop a Systematic Approach to WHS Due Diligence

27 page checklist style report

Specifically addresses the 6 due diligence requirements

Contains 8 easy to use forms and precedents

Customised for each body corporate at $395 + GST


About the presenterMichael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He

has a Bachelor of Laws and practices exclusively in the area of strata

title law. He is a Fellow of the Australian College of Community

Association Lawyers. He was formerly an Adjunct Lecturer with Charles

Sturt University. He appears weekly on SKY News Business Channel's

Property Success with Margaret Lomas and is a regular panellist for the

property edition of Your Money, Your Call for the same channel. You can

find out more about Michael at www.michaelteys.com or follow him on

Twitter @MichaelTeys.com

Teys Lawyers practice nationally in strata title law representing owners corporations, bodies

corporate and apartment owners. The firm’s practice groups include building defects, strata

community disputes, strata titles property law, by-laws and levy collection.

Subscribe for their free e-newsletter StrataSpace and find out more about them at

www.teyslawyers.com.au

http://www.michaelteys.com/

http://www.teyslawyers.com.au/

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